What does this mean for your community?

Maryland now joins several other states in holding that pit bulls and pit bull mixes are inherently dangerous animals. Recently, Maryland’s highest court held in Tracey v. Solesky that a victim of a pit bull attack only needs to show that an owner, or other person who has the right to control a pit bull’s presence on a property, knows or has reason to know that the dog is a pit bull or pit bull mix for purposes of evaluating liability. The court will no longer inquire as to whether the specific pit bull in question has a history of attacking others or whether the pit bull is dangerous, which had been the long standing standard in Maryland for evaluating a pet owners liability. The court’s rationale is that pit bulls attack more frequently, viciously and cause a greater amount of serious/life threatening injuries than all other breeds of dogs.

Tracey v. Solesky involved two young boys who were attacked on the same day by a pit bull who escaped from his small pen. One of the boys’ families sued both the owner of the pit bull and the landlord of the property where the pit bull was living. The court stated that both an owner and a landlord who rents to a pit bull owner could be held liable for the damages of the attack if either knew the dog was a pit bull or pit bull mix, regardless of whether the dog had a history of dangerous behavior.

In extending liability to the landlord, the court stated a landlord has “the right to control a pit bull’s presence on a subject premises.” Under that same standard, community associations arguably could be held liable for damage to victims of a pit bull or pit bull mix attack, if the association has a right to control the property. Specifically, this would be the case for a cooperative housing association, because those associations already are held to the same standard as a landlord. Such a “right to control” could extend to premises within condominium or homeowners associations as well where those associations have the right to adopt rules regarding pets or broader provisions that allow them to adopt rules to prohibit nuisances generally.

Depending on your type of community, as well as your governing documents, an association may wish to consider adopting rules banning pit bulls and pit bull mixes from the community or imposing strict conditions if an owner/resident maintains such a dog on the property. In evaluating such modifications to existing policies or rules, the association could even consider grandfathering in existing pit bulls and pit bull mixes with considerations, such as mandating that such dogs be muzzled when on property controlled by the association and requiring that each pit bull owner sign an indemnification agreement, which would have the owner assume all liability and indemnify the association for any and all claims for damages arising from their pit bull’s actions. Finally, we also recommend that your association immediately contact your insurance carrier to determine whether your association has coverage for a claim of this nature or whether this new change in the law would take such claims outside the coverage provided by the existing policy.

Although some may disagree with this controversial new standard, similar standards and even outright pit bull bans are becoming the trend around the country. For example, the District of Columbia has a similar standard to the one in Tracey v. Solesky and in Prince George’s County, Maryland pit bulls are illegal and must be removed from the county. (For the Prince George’s County standard, click here.) Contact your attorney to discuss option that work for your community.

Ruth Katz is a community associations attorney at Lerch, Early & Brewer in Bethesda, Maryland who helps boards and managers with contentious issues such as pit bulls. For more information about how this ruling may impact your community, contact Ruth at (301) 657-0188 or rokatz@lerchearly.com.

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